REPORTS & ESSAYS

India Upholds Caste System at the U.N.

A compilation of news and commentary. The United Nations Human Rights Council’s (UNHRC) Special Rapporteur on minority issues, Rita Izsák, recently published a report on minority issues. The report was presented and discussed at the UNHRC on 15th March 2016. The mandate of the Special Rapporteur on minority issues was established by the Commission on Human Rights in its resolution 2005/79, as an independent expert. It was renewed by the Human Rights Council in its resolutions 7/6 of 27 March 2008, 16/6 of 24 March 2011 and 25/5 of 28 March 2014. This report was the "first comprehensive UN report on caste-based discrimination" to the UNHRC.

About the Special Rapporteur

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name for the Council's independent fact-finding and monitoring mechanisms that address either country-specific situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent of any government or organization and serve in their individual capacity. Ms. Rita Izsák-Ndiaye was appointed as an Independent Expert on minority issues by the Human Rights Council in June 2011 and her mandate was subsequently renewed as Special Rapporteur on minority issues in March 2014. She is tasked by the UNHRC to promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, among other things.

Some Key Issues from the Report's Findings

1) The Special Rapporteur recognizes the complexity of addressing the issue of caste within a minority rights framework, as there exists the view that the caste system is a way to organize society without the domination of majority groups, and that therefore, "lower caste" groups may not strictly fall under the category of minority groups. However, she believes that, while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority-like characteristics, particularly their non-dominant and often marginalized position, stigma, and the historic use of the minority rights framework to claim their rights. She further acknowledges that caste and caste-like systems are present in other groups, including some indigenous communities. Moreover, she highlights that minority groups who are characterized by their non-dominant position and whose members possess ethnic, religious or linguistic characteristics differing from those of the rest of the population are also, in many cases, caste-affected groups, and therefore face multiple and intersecting forms of discrimination on the grounds of both their minority status and descent. Consequently, she believes that a minority rights approach can provide a valuable platform for the protection of the rights of caste-affected communities and that minority rights standards, including equality, non-discrimination, consultation, participation and special measures, should be applied to combat discrimination based on caste and analogous systems.

2) There are common characteristics to caste and caste-like systems that inherently contradict the principles of human dignity, equality, and non-discrimination through a particularly differentiated social status whereby individuals placed in the lowest positions are regarded as "inferior" and "non-human". The resulting extreme exclusion and dehumanization of caste-affected groups translates into individuals and communities often being deprived of, or severely restricted from enjoying their most basic civil, political, economic, social and cultural rights.

3) Caste and analogous forms of discrimination are a major cause of poverty and perpetuate poverty in affected communities. As stressed previously, the relationship between inequality, discrimination and poverty and their impact on disadvantaged minority groups cannot be ignored or underestimated. Targeted attention to the situation of the poorest and most socially and economically marginalized communities is essential to break the vicious cycle of discrimination, exclusion, poverty and underdevelopment.

4) Estimates indicate that over 250 million people suffer from caste-based discrimination worldwide. Though the highest numbers of affected communities are concentrated in South Asia, particularly India and Nepal, discrimination on the grounds of caste or analogous status is a global phenomenon and can be found in other geographical contexts, including in Africa, the Middle East and the Pacific region, as well as in diaspora communities. Although the examples given are not exhaustive, they aim to be illustrative of caste-affected communities in different regions.

5) Dalits constitute the largest caste-affected group in South Asia. They comprise a myriad of sub-caste groups and although many communities are subjected to similar forms of discrimination across the region, the situation of Dalits in caste-affected countries differs for historical and political reasons. Dalits are the victims of the gravest forms of caste discrimination: they are often assigned the most degrading jobs; subjected to forced and bonded labour; have limited or unequal access to resources (including economic resources, land and water) and services; and are disproportionately affected by poverty. In India, according to official data, Dalits (referred to as "scheduled castes") constitute more than 201 million people. This figure does not include Dalits who have converted or are born and raised within non-Hindu religious communities, such as the Dalit Muslim and Christian communities. Unofficial statistics estimate the actual number of Dalits in India to be much higher.

6) The caste system migrated with the South Asian diaspora to other regions, including Africa (Mauritius, South Africa), Europe (United Kingdom of Great Britain and Northern Ireland), the Americas (United States of America, Canada and Suriname), the Middle East (Bahrain, Kuwait and United Arab Emirates), Malaysia, Australia and the Pacific (Fiji).

7) The Committee identified several factors that could indicate the existence of discrimination on the basis of caste and analogous systems of inherited status in affected communities, including:

"inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces, places of worship and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses referring to pollution or untouchability; and generalized lack of respect for their human dignity and equality".

It also made specific recommendations, including in the areas of preventing hate speech in the media, administration of justice, political participation and the right to education.

8) Discrimination based on caste increases the vulnerability of affected groups to contemporary forms of slavery. Dalits comprise the majority of people subjected to domestic bonded labour, and a large number of victims of trafficking in persons, sexual slavery and other forms of labour exploitation are members of low castes.

9) Suppression of Political and Civil rights, Economic and Social Cultural rights due to various forms of Caste-based discrimination.

10) Caste is one of the factors that results in multiple and intersecting forms of discrimination against certain groups of women. Women and girls from ‘low castes’ are particularly vulnerable to violation and denial of their rights in both public and private life.

Some Key Recommendations in the Report

1) Discrimination based on caste and analogous systems is deeply embedded in interpersonal and communal relationships in caste-affected countries. Therefore, overcoming it will require not only legal and political responses, but also community-based approaches aimed at changing the mindsets of individuals and the collective conscience of local communities. In this regard, formal and informal community education and open dialogue from an early age are essential elements to ensure that the principles of human dignity and equality are generally accepted and respected.

2) Discrimination on the basis of caste and analogous systems is a major cause of poverty, inequality and social exclusion of affected communities. In the implementation of the 2030 Agenda for Sustainable Development, States should consider including caste-specific indicators to ensure that the Sustainable Development Goals and their targets address the situation of affected groups.

3) The Special Rapporteur acknowledges that further in-depth studies of caste-affected communities, particularly outside of South Asia, are needed in order to comprehensively assess the situation of, and specific challenges facing such groups and implement adequate measures to combat caste-based discrimination that affects them. To that end, the collection of data – disaggregated by caste, sex, ethnicity, religion and language, among other things – is essential to adequately map affected groups in caste-affected countries. Data collection programmes should allow for diverse forms of self-identification and comply with international standards regarding the right to privacy.

4) States should adopt specific legislations prohibiting discrimination on the grounds of caste and/or analogous systems. Existing legal frameworks to combat caste-based discrimination must be adequately and fully implemented and include appropriate penalties for acts of caste-based discrimination.

5) States should conduct awareness-raising campaigns at the national and local levels, targeting both affected communities and the wider public to sensitize them against caste-based discrimination and analogous forms of such discrimination. These campaigns should inform the public about the various manifestations, legal prohibitions and penalties associated with caste discrimination, and victims should be informed of their rights and available means of legal recourse to bring to light caste-based discriminatory practices and obtain redress.

6) Comprehensive national action plans and budgets to combat discrimination based on caste and analogous systems should be urgently developed and implemented in caste-affected countries. Plans should have clear objectives and measures in a wide range of areas, including poverty reduction strategies, employment, health, housing, education and access to basic services, including water and sanitation. A specific focus on the issues of caste-affected women, should be developed in coordination with affected groups and local organizations working with them and providing them sufficient funding. Their progress should be regularly monitored.

7) Special measures, including reservations, quota systems and/or schemes, should be put into place and enforced in specific areas, including employment, education, and public and political institutions in order to guarantee the effective participation and representation of affected communities in public life.

8) Women and girls are particularly vulnerable to caste-based discrimination, as they suffer from multiple and intersecting forms of discrimination owing to both their gender and unprivileged caste status. They are disproportionately subjected to dire human rights violations, including violence and particularly, sexual violence, trafficking, early and/or forced marriage and harmful traditional practices. They face obstacles in accessing justice and redress and are excluded or relegated to a secondary or subordinate role in decision-making processes. Caste-affected States should urgently take robust action to eradicate such violations through, inter alia, the enactment and effective implementation of specific legislation and the adoption of special measures and policies and programmes to address the entrenched situation of marginalization and exclusion experienced by women and girls owing to their caste status.

9) Ad hoc supervisory bodies or specific departments in national human rights institutions should be established to address and monitor caste-based discrimination, where relevant. They should analyze existing domestic legislation, recommend programmes and provide advice on public policies to enhance the implementation of non-discrimination legislation. They should provide complaint-handling services, by receiving complaints, conducting investigations and initiating or pursuing legal actions in relation to cases involving caste-based discrimination. These bodies should be independent and provided with sufficient funding, resources and staff to adequately fulfill their mandate.

10) Law enforcement officers should receive training to identify and adequately respond to cases of caste-based discrimination, particularly those involving caste-based violence. Rapid-response protocols should be developed and implemented by police officers to attend to victims and conduct in situ investigations. Criminal penalties should be established for law enforcement officers who neglect or intentionally decide not to investigate and/or prosecute complaints filed by individuals regarded as "low caste". Recruitment of members of affected communities into law enforcement agencies should be encouraged, including through the establishment of a quota system for caste-affected individuals.

11) Human rights education in schools should be a mandatory subject. Language in school textbooks should be revised to eliminate stereotypical and prejudicial portrayals of caste-affected communities and contest the social construction of caste and caste-like systems and related notions, including untouchability and segregation.

12) Specific measures should be developed to tackle discrimination, including on the grounds of caste, in all development and disaster recovery actions and programming. Implementation of caste-analysis methodology in the humanitarian assistance framework to adequately identify affected communities, as well as the implementation mechanisms to ensure that humanitarian relief is equally distributed, is fundamental to prevent caste-based discrimination from being replicated in humanitarian response actions.

13) States should extend invitations to special procedure mandate holders to assess the situation of caste-affected communities in their respective countries and request their assistance for technical cooperation.

14) The draft United Nations principles and guidelines for the effective elimination of discrimination based on work and descent should be promoted by States and endorsed by the Human Rights Council.

Response by the Government of India's Representative to the UN

The Senior Indian Diplomat Ajit Kumar, India's permanent representative to the UN in Geneva, said that the report "was a breach of the SR's mandate". He pointed out that when Izsák-Ndiaye's 'mandate' was extended on March 2015, caste was not covered as per the categories of minorities. "It would have been preferable for the SR to take the guidance of the relevant resolutions that led to the establishment of the SR's mandate rather than to seek to extend it. Despite the SR's own acknowledgement of the weakness of this aspect, the SR has gone ahead to make a series of sweeping judgments," said Kumar. Kumar pointed out that the justification of "minority-like characteristics" was not convincing, as it could cover almost every group in society.

"This is a questionable proposition, because in some context or the other all categories of persons could well be classified as minorities, and hence, is there any section of society over which the SR's mandate will not be applied?" he asked. If "incentives" for each SR to go "beyond" and reinterpret their mandates were allowed, it would have the "potential for calling into question the seriousness of the work of this council", India argued. Kumar termed the publication of the report as an "opportunity" to address the entire issue of "role and responsibility of UN special procedures mandate holders".

"There were no signs that such a report was in the works. It does not seem that the report was done based on any field studies based on country visits. It seemed more like a research compilation," said an MEA official.

He noted that India had never recognized caste groups as being equivalent to "religious or other minority groups". "By this definition, 25% of the Indian population would become minorities in one stroke," he added.

India has a "standing invitation" to all special procedures mandate holders to visit the country since 2011, but officials said that there were no requests from Izsák-Ndiaye so far.

Reply by Special Rapporteur Izsák-Ndiaye to Government of India's Representative to the UN

Izsák-Ndiaye gave a statement to the media that she had not requested a visit to India as the report was not country-specific, but based on a theme. "I have not requested a country visit before the preparation of the thematic report as it is not a standard practice (unlike with country reports which are only issued after an actual visit had taken place). Also kindly note that this is a global report with global tendencies, challenges and [the] recommendations are not specifically on India," she said. On the criticisms by the Government of India's Representative in UN she said:

"it is not unusual at the human rights council to have disagreement between the member states and the mandate-holders on the approach they take and the actual content of their reports. I respect India's opinion and as I highlighted, 'lower caste' groups often self-identify as minorities (and in many situations they are indeed clearly religious or ethnic minorities in classic terms) and have historically used the minority rights framework and therefore sought the support of my mandate since its establishment to claim their rights".

In her defense regarding the "Breach of SR's Mandate", she gave the reference from the "Guidance Note" of the UN secretary general on racial discrimination and the protection of minorities in March 2013 which "explicitly recommended that the UN should focus attention on caste-based discrimination and related practices".

She further argued from the report that, the SR's report notes that "CASTE DISCRIMINATION AND CASTEISM" directly affects the health of the discriminated, citing an Indian study which "demonstrated stark disparities between Dalit and non-Dalit women in terms of life expectancy and access to prenatal and postnatal care".

India's Pathetic Position on Issues of Caste in the International Arena

During the 2001 World Conference against Racism in Durban, there was a major effort by Indian NGOs to include Caste and Caste-based discrimination on the agenda of the Conference. The then Minister of State for External Affairs, Omar Abdullah (from the ruling NDA Government) highly criticized "Raising the issue of Caste in International Forum". "Issue of caste was not an appropriate subject for discussion at this conference", he said.

In 2004, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène had included the caste system in the list of "political platforms which promote or incite racial discrimination". Doudou Diène from Senegal was United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, from 2002—2008.

This report states that:

"Racism subsumed in the caste system still plays a role in violence and social displacement in India. The 3,000-year-old caste system of social hierarchy still excludes millions of Dalits ("untouchables"). Even though the nation's 1950 Constitution outlawed discrimination and introduced quotas for government jobs, thereby promoting millions of former untouchables and members of indigenous tribes, the system still leaves much to be desired. Even the real gains registered by affirmative action programmes are eroded by politicians' campaigns of expediency."

The issues of race and xenophobia as applied to India have been challenged by governmental authorities on the grounds that claimed (a) caste is not race, (b) caste is based on internal conditions, and (c) time should be allowed to resolve the problem. The CERD (Committee on the Elimination of racial Discrimination) has, however, explicitly replied: "The Committee states that the term 'descent' mentioned in Article 1 of the Convention does not solely refer to race. The Committee affirms that the situation of scheduled castes and scheduled tribes falls within the scope of the Convention." International bodies such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women and the International Labour Organization (ILO) also have identified caste as the basis for human rights violation. Advocacy groups, policy analysts and civic organizations have broadened the concept of racism and xenophobia to incorporate all acts of exclusion and discrimination that might be based on narrow cultural, religious and regional traditions or interpretations. The argument that issues such as caste must be considered internal matters and be given generations to change is also deemed unacceptable on the basis of accepted international principles. Gross violations of human rights abuses against caste groups such as the burning of individuals or killing of caste members because of alleged cultural violations are no longer matters of apology and internal law and order, but rather serious human rights violations to be judged by the sovereignty of the human community and not just State or local authorities. Human rights groups and advocacy organizations have always been part of the universal quest for justice and equal opportunity.

Statements Made by Mr. Hardeep Singh Puri, Ambassador and Permanent Representative of India at the 60th Session of the Commission on Human Rights, Geneva

"We have seen the study presented by the Special Rapporteur, Mr. Doudou Diène contained in document E/CN.4/2004/61. We cannot see how the reference to the caste system in India fits into a study on 'Political platforms which promote or incite racial discrimination'. The national platform on which the Indian freedom struggle was based, and on which the Constitution of India rests, is entirely to the contrary. If anything, the evolution of Indian political thought, and that of the legal and administrative framework in the last more than five decades has been precisely in the direction of proscribing discrimination on any ground, including race and caste.

The magnitude and scale of the affirmative action that has been undertaken, and the policy instruments developed by the Indian Government to address the caste issue has no parallel in the world. There is no dearth of findings which illustrate the progress that has been achieved in the social, educational, economic and political spheres as a result of these multi-pronged efforts. There is similarly acknowledgement that a lot more has to be done.

There is similarly a high level of Government commitment to address the welfare of the Scheduled Tribes in India. Apart from the myriad legal and administrative instruments and provisions that have existed and been further strengthened since independence, a separate Ministry for Tribal Affairs was created in 1999 and a Department of Development of North Eastern Region was created in 2001.

The Tenth Five Year Plan of the country for the period 2002-2007 indicates the extent of resources that have been earmarked for the Scheduled Castes and Tribes since the start of the planning process, the progress achieved in the economic, social and political indicators, and the programmes and targets for the next five years.

It also bears clarification that the term 'caste' denotes a 'social' and 'class' distinction which has its origins in the fundamental division of Indian society during ancient times. The use of the term 'descent' in the Convention on the Elimination of all Forms of Racial Discrimination refers to 'racial descent'. Communities which fall under the definition of Scheduled Castes and Scheduled Tribes are unique to Indian society and its historical process, and do not come under the purview of Article 1 of the Convention."

At a 2006 international conference on Dalit rights in The Hague, Chin-Sung Chung, special rapporteur on discrimination on the basis of work and descent noted: "In 2002, CERD General Recommendation XXIX stated: 'The Committee strongly condemns descent-based discrimination such as discrimination on the basis of caste and analogous systems of inherited status, which is a violation of the Convention'.

Three years ago, the European parliament adopted a resolution that called on the European Commission to recognize casteism as a "distinct form of discrimination rooted in the social/or religious context".

Stand of Dalits' Civil Rights Organizations

From the historical past, various Dalit Civil Rights Organizations have been critical of the many policy measures adopted by various Governments as part of handling the issues regarding Caste and Caste based discrimination. The position adopted by the Government of India in handling the problems of Caste and Caste discrimination is largely outdated and does not stand with the Human Rights perspective of the Globalized and civiler world.

N Paul Divakar, General Secretary, National Campaign for Dalit Human Rights said, "Nobody wants the sovereignty of the country to be challenged. We don't want super powers to dictate to us. But, if we are part of the UN and are aspiring to be a candidate for the Security Council, we should follow the rules. The report showed how caste and analogous discrimination was happening even in places like Japan. This shows that it happens everywhere. In Senegal, I saw how the Neenos had a separate graveyard and also sat in another terrace. Incidentally, Izsák-Ndiaye, who describes herself as being from "Hungary/Senegal" lives in Dakar and has also referred to discrimination against the Neenos in her report."

The Dalit Civil Right activist also said that internationalization would only show how far India has gone in supporting Dalit rights within the legislative and legal framework. "I think India leads the world… That's why instead of perpetuating old positions, India could have showcased its programs and acted as a role model by engagement".

The Indian position, he felt, was the "stance of the bureaucracy, not the government".

Ashok Bharti, Chairperson of the National Confederation of Dalit and Adivasi Organisations said, "The whole government suffers from a mindset of the ‘upper castes’, who are victims of their own guilt and will therefore try to hide their faults. If the Indian government had done so well in supporting Dalits, "why have there been thousands of cases of atrocities in the past 25 years? How many perpetrators have been punished? If domestic pressures and remedies do not work, internationalization was a viable option to seek improvement in the status of Dalits."

"The report will not remain as just a document. We will use it for advocacy work, and it will carry a lot of weight in our discussions with national human rights institutions," said Henri Tiphagne, a leading Indian human rights advocate and International Dalit Solidarity Network board member.

Regarding the pathetic stand of the Indian Government during discussions on Caste-based Discrimination in various International Forums, Henri Tiphagne narrated his observation as follows:

"I have been in Geneva in the UN Sub commission on human rights in August 2000 when a resolution on caste-based discrimination had to be stated as discrimination based on work and descent; also in Durban when India refused to allow caste to be discussed in the World Conference Against Racism in August 2001 and now on 15th March 2016 when Ms. Rita Izsák-Ndiaye, the present UN SR on Minorities presented her report exclusively on caste-based discrimination, followed by India's strong objections. Dalit Rights are Human Rights. The struggle continues."

"This report is a very courageous effort. It raises the hopes of millions of Dalits who are subjected to inhuman forms of discrimination based on caste, work and descent. We dream that this could be a step on the way to a UN Convention on the elimination of caste-based discrimination," said Manjula Pradeep, Executive Director of the Indian Dalit Rights organization Navsarjan.

Media Blackout of the Report and its aftermath

This important issue related to the social fabric of the country was completely blacked out by the Indian media on account of avoiding the "Superimposing of Westernized Human Rights Agenda using the Dalits as shield on the Indian State". There was minimal reporting on this particularly important issue, given that around 15 % of the Indian population who are ex-untouchables i.e Dalits, continue to suffer due to caste-based discrimination in their day to day life from cradle to grave. Even the state-sponsored news channels likes Lok Sabha TV and Rajya Sabha TV which conduct and highlight various programmes on the plight of various marginalized sections of the Indian society, did not air any program or conduct any panel discussions on the "first comprehensive UN report on caste-based discrimination to the United Nations Human Rights Council".

Amar Khade is a self-employed engineer by profession and an anti-caste activist by choice. First published in Roundtable India.